Opinion
No. 10-05-00193-CV
Order issued and filed April 19, 2006.
Appeal from the 19th District Court, McLennan County, Texas, Trial Court No. 92-3724-1.
Motions denied.
Before Justice VANCE, Justice REYNA, and Judge SCOGGINS.
The Honorable R. Al Scoggins, Jr., Judge of the 378th District Court of Ellis County, sitting by assignment of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon 2005).
ORDER DENYING MOTIONS TO RECUSE OR DISQUALIFY
After Chief Justice Gray certified his recusal, the Chief Justice of the Supreme Court of Texas assigned the Honorable R. Al Scoggins, Jr., an active district judge to sit as a member of the panel in this case. Before Judge Scoggins was assigned, Sue Walston filed motions to disqualify or recuse Justices Vance and Reyna. After Judge Scoggins's assignment, Walston filed an objection to the assignment and a motion to disqualify or recuse Judge Scoggins.
Disqualification and recusal of appellate judges is controlled by Rule 16 of the appellate rules. Tex.R.App.P. 16. A motion to disqualify may be raised at any time. McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex.App.-Waco 2001, order). Grounds for disqualification are set forth in the Constitution. TEX. CONST. art. V, § 11; see generally In re Union Pac. Res. Co., 969 S.W.2d 427 (Tex. 1998) (citing Kilgarlin Bruch, Disqualification and Recusal of Judges, 17 ST. MARY'S L.J. 599 (1986)). Texas Rule of Civil Procedure 18b also lists the instances in which a justice is disqualified to hear a matter. TEX. R. CIV. P. 18b(1). The appellate rules do not currently provide a procedure for filing a motion for disqualification, so we have followed the recusal procedure to address the disqualification motions. TEX. R. APP. P. 16.3; McCullough, 50 S.W.3d at 88.
We will apply the appellate rules even though one panel member is a district judge.
We have also utilized the procedure set forth in the rule to address the merits of the motions to recuse. TEX. R. APP. P. 16. Rule 18b lists the reasons why a justice should recuse himself or herself in a pending matter. Tex. R. Civ. P. 18b(2).
Under Rule 16.3, after receipt of the motions and prior to any further proceeding in this case, Justices Vance and Reyna and Judge Scoggins considered the motions in chambers. TEX. R. APP. P. 16.3(b). None of th found a reason to disqualify or recuse himself and, under Rule 16.3(b), certified the issue to the panel assigned to this case. Id.; McCullough, 50 S.W.3d at 88. The panel then decided each motion with respect to the challenged justice or judge by a vote of the remaining members. See id. No challenged justice or judge sat with the remainder of the panel when his challenge was considered. See TEX. R. APP. P. 16.3; McCullough, 50 S.W.3d at 88.
As noted at the beginning of this order, Walston has also filed an objection to Judge Scoggins's assignment. See Tex. Gov't Code Ann. § 75.551(b) (Vernon 2005). However, an active district judge "is not subject to an objection" under section 75.551. Id. § 75.551(e) (Vernon 2005).
In each instance, the other members of the panel found that the justice or judge under consideration is not disqualified under article V, section 11 of the Texas Constitution, i.e., does not have an interest in the subject matter of the controversy, is not related to a party by affinity or consanguinity within the third degree, and has not been counsel in the case. TEX. CONST. art. V, § 11; TEX. R. APP. P. 16.1; TEX. R. CIV. P. 18b(1). Each motion to disqualify is denied with respect to the justice or judge who was challenged.
The determination of whether recusal is necessary must be made on a case-by-case, fact-intensive basis. McCullough, 50 S.W.3d at 89. In each instance, the remaining members of the panel found the motion without merit and found no reason to recuse the justice or judge under consideration. TEX. R. APP. P. 16.2, 16.3(b); TEX. R. CIV. P. 18b(2). Each motion to recuse is denied with respect to the justice or judge who was challenged.
Walston cites Justice Gammage's Declaration of Recusal in Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995), in support of her motions. We note, however, Justice Enoch's response in which he observes that four other members of the court, who were similarly challenged, neither recused themselves nor were recused by the court. Id. at 880 (Enoch, J. responding).